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'Hazelwood' at 25: Advocate laments case's lasting impact
The National Law Journal
Twenty-five years ago this week, the Supreme Court issued a First Amendment ruling whose deep impact is still felt in public schools and, now, even at public universities.
The Jan. 13, 1988, decision in Hazelwood v. Kuhlmeier was one of those Supreme Court rulings that may have seemed routine at the time, but over time transformed the legal underpinnings of an entire segment of lawin this instance, the power of school administrators to restrict student expression. It gave schools the upper hand, finding that student speech "inconsistent with its educational mission" need not be tolerated.
It was a marked shift from Tinker v. Des Moines Independent School District, which said students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
Few people have charted the impact of Hazelwood as closely as Frank LoMonte, executive director of the Student Press Law Center in Arlington, Va. Formerly a journalist and then a litigator at Sutherland Asbill & Brennan in Atlanta, LoMonte and his organization help student journalists deal with efforts by school administrators to censor their work.
In a recent article in the Harvard Law & Policy Review, LoMonte warned that federal courts are invoking Hazelwood to uphold restrictions on speech at public universities. In an interview last week, LoMonte discussed the continuing impact of Hazelwood.
Why was Hazelwood such an importantand devastatingdecision for student free expression?
The Supreme Court has consistently said that, when you have close judgment calls to make about regulating the content of a speaker's message, every benefit of the doubt is supposed to go to the speaker. If you have a choice between erring on the side of too much freedom or on the side of too much regulation, that's supposed to be an easy decisionthe speaker is supposed to get "breathing space" so he is not intimidated by the fear of punishment into censoring himself.
Hazelwood upended all of the normal presumptions, so that the benefit of the doubt now goes to the government regulator, whose judgment a court will rarely, if ever, be willing to second-guess. Hazelwood marked a very pronounced mentality shift, where the judiciary's greatest concern became protecting the ability of government authority figures to "keep the trains running on time" and not protecting vulnerable individuals against government overreaching.
How did Hazelwood change the model of student constitutional rights embodied in the Tinker decision?
Hazelwood greatly undermined the high degree of First Amendment protection that the Warren Court recognized in 1969 in the famous anti-war armbands case, Tinker v. Des Moines Independent Community School District. First Amendment law is always a matter of line-drawing and balancing of interests, and in Tinker, the court located a very sensible middle ground where students' rights were protected to a degree, but nowhere near as broadly as the rights of ordinary citizens walking down a public street. Under Tinker, the government can prohibit or punish speech if the speech threatens to provoke a substantial disruption of school activities. That sensible middle ground gave students the freedom to speak out about divisive political or social issuesor even to criticize school policies and programswithout fear of retaliation.
Hazelwood upsets Tinker's delicate balance by relocating that line between authority and individual liberty, so that practically nothing of the First Amendment remains. In Hazelwood, the court decided that a high school principal did not violate the First Amendment by removing two pages of articles from a student newspaper because he felt the articles lacked balance and dealt with overly mature subject matter, like teenage pregnancy.
Even though the articles were not shown to be disruptive of school, the court divided all student speech into two tiersa protected "Tinker" tier when you're speaking as a private individual, and a much less protected "Hazelwood" tier when you're using a medium provided by the school for educational purposes. In that Hazelwood tier, a school can prevent you from speaking for essentially any reasonable basis, and the school's reasonableness is going to be reviewed with the gentlest of scrutiny and the highest degree of judicial deference.
What has been the impact of Hazelwood on the student press? Has an entire generation grown up being suppressedor timidabout expressing themselves?
It's impossible to quantify what has been lost because of Hazelwood, but we have pretty powerful anecdotal evidence that students are regularly being prevented from sharing information and opinions just because their schools are thin-skinned about being criticized, or because their schools believe no subject matter more mature than Sesame Street is appropriate for discussion.
The Student Press Law Center hotline consistently receives about 800 calls and emails every year about censorship, and we know that is a very tiny fraction of the actual censorship taking place. Students and teachers as a wholeand especially high-achieving college-bound students who live and die for that principal's letter of recommendationare extremely reluctant to take on school authority.
We hear almost every day from someone who has an egregious case of censorship but is terrified to go public, let alone get a lawyer and go to court. When we do hear from a student or teacher who's been censored, the explanation they are given is almost invariably the same one, verbatim, like the principal is reading from a script: "You're making the school look bad."
That is not a case of using censorship authority to teach responsible journalism or to protect vulnerable young listeners against harmful material. That is brutal, bare-knuckle censorship for the purpose of advancing the principal's career ambitions, and deceiving the public that the school has no problems.
Denying the public accurate information about the shortcomings of schools is a wholly illegitimate use of government authority, and yet it is far and away the primary basis for censorship.
More discouraging than the loss of any particular story or even any particular newspaper is what Hazelwood stands for philosophically. When you read Tinker, it's striking how Justice [Abe] Fortas admits straight-out that freedom of expression is always (as he calls it) "hazardous," but then goes on to say "we must take this risk." Hazelwood comes back and says we must not take the risk.
You have warned about lower courts expanding Hazelwood's reach to college expression. How has this occurred, and do you think the Supreme Court will take up the issue?
Courts started applying Hazelwood at the college level almost immediately. Within a year of the Supreme Court's decision, the Eleventh Circuit used Hazelwood to dismiss a First Amendment claim against the University of Alabama by student government candidates who thought the university was excessively regulating campaign speech.
The legal community didn't really sit up and take notice until 2005, when the Seventh Circuit in Chicago decided the Hosty v. Carter case, a case involving censorship of a college newspaper in Illinois. That case was really a wake-up call for the First Amendment community, because you had an especially influential court of appeals say that, depending on how a college newspaper is structured, its journalists might have no greater rights than 15-year-olds, even though essentially all of the speakers and all of the readers are adults.
If you read Hazelwood carefully, it's a very limited case. It's a case about the use of a vehicle for communication that the government pays for and supervises, like a newspaper or a yearbook. But the lower courts have exploded the Hazelwood doctrine from a doctrine about control over the use of government property into a doctrine about control over students as people.
As a result, you have decisions like the ruling last year from the Sixth Circuit in Ward v. Polite that the Hazelwood level of protection applies even where the speech is a private one-on-one conversation between a 31-year-old graduate student objecting to her college's curriculum and her faculty adviser.
A number of courts are now saying that Hazelwood applies to the educational "context" or the educational "setting" and not to the use of educational property, and those are very different things. If I go home on Saturday and write a blog about my experiences at college, I'm very clearly not using the college's property and Hazelwood should never enter the discussionbut you might see colleges argue (and in fact we saw the University of Minnesota try this very argument, unsuccessfully, in a case last year) that speech about the college is part of the educational "setting" or educational "context."
If that becomes accepted doctrine, then you can kiss the First Amendment goodbye at colleges, and you can kiss journalism goodbye along with it.
It's ironic and disturbing that we're seeing this drift toward less freedom of expression and more government regulatory authority at colleges at exactly the time that college and even high school journalists are being asked to step up and assume the front-line news-gathering responsibilities that salaried professionals used to fulfill.
You've got more and more ventures going on in places like Macon, Georgia, where the college journalism program is now providing the backbone of the staff for what was once a large metropolitan daily newspaper. Those students are being asked to produce professional-caliber journalism on which the entire community can depend to stay informed, but to do it without any assurance that they are safe from retaliation if someone in their institution dislikes what they wrote.
We should be moving urgently toward greater and greater protection for college journalists, and instead we are eroding their rights, to the detriment of everyone in the audience who relies on them for news.
More broadly, do you see the Supreme Court limiting Hazelwood or even reversing it, given that students are exposed to a vast range of expression nowadays that make the articles in Hazelwood seem tame?
As a practical matter, I think it's awfully hard to see the court retreating from Hazelwood if only because that would require getting a vehicle in front of the court that provides that opportunity, and it is exceedingly difficult to do that.
When you're dealing with students, their time horizon is measured in weeks and not in years. The Hazelwood case itself took almost five years from the time of the censorship to the time of the Supreme Court ruling, and it's rare to find a student who's willing to devote five years to taking a free-speech case all the way through the Supreme Court, when there's no way that student will personally benefit from the outcome. Plus, you have to have a very stubborn and determined school on the other side. In our experience, when schools are confronted with a determined student with a strong case who's not afraid to go to court, their knees buckle on the courthouse steps.
I don't have much practical hope that the court will revisit Hazelwood, although I do allow myself the fantasy that Justice [Sandra Day] O'Connor, whose vote could have swung the case in the students' favor and who is now the nation's leading advocate for student civic engagement, will come to realize just how devastating Hazelwood has been for youth civic participation and give a speech disowning that vote and expressing her regret for it. I wake up right after she gives the speech, so I can't tell you how the dream ends.
What is the next battlefront in the area of student expression, and how do you think the Supreme Court will handle it?
It's only a matter of time before the court takes on a case involving the ability of schools to regulate and punish speech that's created at home on a personal computer, but that provokes a reaction at school. That issuehow far does a school's disciplinary authority reach beyond the proverbial "schoolhouse gate" that the court referenced so memorably in Tinkeris probably the single most actively litigated First Amendment issue that is tying the lower courts into knots today.
We've seen several courts of appeal declare that off-campus speech on a social networking site is the legal equivalent of speech in the hallway during school hours, and that's a direct outgrowth of the judicial movement toward deference to school disciplinarians that the court signaled in Hazelwood. That is a very dangerous path.
If we say that a student can be suspended or expelled for speech that disrupts the orderly operation of school, even off campus, then that casts a very long shadow over the ability of a student to engage in whistleblowing speech or editorial commentary that might provoke a strong reaction affecting the school. The student who is censored when he tries to write a newspaper article about how hazing and steroid use are rampant in the athletic department needs to have absolute confidence that, even if he can't publish that article in the campus newspaper, he can go to the local TV news team or speak at the open-mike session at the school board, and that speech will not get him yanked into the principal's office and suspended, even if it causes a huge uproar that results in coaches being fired and parents pulling their kids out of the school. That may be "disruptive" speech, but it's incredibly societally valuable speech.
The Tinker "disruption" standard is just insufficiently protective when you're talking about speech that's directed to a larger public audience outside of school that might include parents, policymakers and the news media.
It's essential that the Supreme Court get this one right. If we throw open the gates and unleash school disciplinary authority over everything students say no matter where and when they say it, then we're going to see a repeat of the same "zero tolerance" overreactions we've already experienced with weapons and drugs. We're going to see kids kicked out of school for harmless misunderstood jokes on their Facebook pages, and we're going to be conditioning young citizens to believe it's okay for the government to keep tabs on everything you do and to punish you just for saying unkind words (or words that are misunderstood as being unkind).
Based on the last time the court waded into the student speech issue, Morse v. Frederick in 2007, and based on the last several years of First Amendment rulings of the Roberts Court, I feel comfortable that this court is not inclined to further erode the First Amendment in any meaningful way. In the Morse case, you saw Justices [Samuel] Alito and [Anthony] Kennedy express real hesitation about recognizing any more exceptions to the Tinker standard or giving schools any greater disciplinary authority over the content of speech. Especially if the case involves speech that has any substantive meritspeech addressing issues of social importance, even if it's very coarse or inartful speechI am optimistic that the First Amendment will survive Facebook.
Tony Mauro writes for The National Law Journal, a Daily Report affiliate.